January 25, 2002It now seems like a million years ago, but the George W. Bush who first rested his cowboy hat on his polished Oval Office desk aspired to "humility" as leader of the Free World. There were reverential comments in the West Wing about "the presidency," as if it and Bush were living in separate quarters. The President took pains to court busloads of lawmakers and assure them that his steps would complement their say.
Fast-forward: President Bush, it turns out, is not the least bit shy about embracing all the pomp of his office, and humility has occasionally given way to bravado. After September 11, Bush unblinkingly described his mission as "saving the world." Congress alone has the power to legislate, but the President in the past year has flexed all the muscles the Constitution gave him and, some would say, a few it didn't.
"I like my job a lot," Bush told a Louisiana audience on January 15, adding, "We've got a fantastic Constitution."
Despite Bush's rhetoric about the need to forge alliances with Congress to accomplish great things for America, and despite his call for patience, he has at times chafed at the glacial pace collaboration often requires. A President's ability to go it alone--by issuing executive orders, regulations, and instructions to agencies, and by asserting presidential privileges--has been a welcome relief for the business-school graduate whose public persona was built more on action than on deliberation. "I'm a performance-oriented person; I believe in results," Bush has explained more than once.
In his first year in office, the President used his various unilateral powers to set an example in leadership for Congress on his domestic policy ideals: He set up a new White House office to bring faith-based social programs and government closer together, and he initially tried to jettison Bill Clinton-era offices dedicated to AIDS and race issues. (AIDS stayed.) He instructed his department Secretaries to reappraise some pending regulatory requirements, begun under the Clinton administration, that were deemed philosophically at odds with Republican constituencies. Bush put the brakes on a rule setting the acceptable level of arsenic in drinking water--later, he let the rule go forward--and on a number of environmental regulations.
Bush used his authority over the federal bureaucracy to order that federal funding for research on embryonic stem-cell lines be limited to work on those lines that were in existence at the time of his decision. And he signed an executive order on his third day on the job overturning the Clinton administration's policy of giving federal aid to overseas family-planning groups that offer abortion counseling.
On foreign policy, Bush decided the United States would not ratify the Kyoto Protocol, a pact among 180 countries designed to reduce global warming (and one the Clinton administration had signed in 1997), and he informed a displeased Russia that the United States was withdrawing from the 1972 Antiballistic Missile Treaty. As commander in chief, he waged war against a contagion of terrorism spreading in several countries, and after the fact welcomed a resolution of support from Congress in place of a declaration of war. As a defender of law and justice, Bush ordered up military tribunals for noncitizens, a forum in which he is essentially prosecutor and, in the end, judge and jury. He also blocked the U.S.-based financial assets of suspected terrorists and those of institutions believed to be offering the "evildoers" a helping hand.
Bush also set out to defend his prerogatives against the prying eyes of lawmakers, the media, and others. When the House Committee on Government Reform--chaired by Republican Dan Burton of Indiana, whose probes of the Clinton administration drove Democrats to distraction--requested Justice Department documents, Bush formally invoked executive privilege for the first time in his presidency. And he and Vice President Dick Cheney told the General Accounting Office, an investigative arm of Congress, that its demands for information on outside groups that met last year with the Administration's energy policy task force "would unconstitutionally interfere with the functioning of the executive branch." Bush has also used the war on terrorism and heightened concerns about security as justification both to seek and to lock up information.
Pulling Hard On The Presidential Levers
"The President, as the head of the executive branch and the commander in chief of our armed forces and the only political leader directly accountable to all Americans, has the unique personal responsibility to ensure the safety and security of our citizens," said White House counsel Alberto R. Gonzales during a November 30 speech to a conference of the American Bar Association. "The Framers, in The Federalist Papers, spoke explicitly about the need for a unitary executive presidency, precisely to allow for bigger effectiveness and accountability in the conduct of our foreign and military affairs," explained Gonzales, a former Texas Supreme Court justice.
Most experts on the uses of executive authority divide their assessments of Bush's first-year performance into two phases: everything before 19 suicide hijackers of four jetliners murdered some 3,100 people, and everything after. Interviews revealed a consensus that Bush and his White House team have a feel for how and when to employ the presidential levers of power to their advantage.
Even before September 11, Bush was interested in exerting control from the West Wing. "This is often typical of Republican Presidents. They tend to be more sympathetic to centralizing power within the presidency. They see Congress as an undisciplined organization," said Kenneth R. Mayer, a political science professor at the University of Wisconsin (Madison) and the author of a recent book about executive orders and presidential power, With the Stroke of a Pen.
"There was an upswing in executive actions after September 11, because a President can do it fast," Mayer said. He cited the administration's early-October order to airlines to reinforce cockpit doors. Not until weeks later did Congress pass the legislative authority for that order, which was followed by the regulatory process specifying the airlines' compliance options. Counting executive orders alone, Bush signed more in the first three-and-a-half months after the terrorist attacks than he had in the eight months of his presidency preceding the tragedies.
To some conservatives, Bush--with his steady 80 percent or so job-approval rating--should be even more aggressive in his use of executive muscle, because of the challenges inevitably involved in juggling domestic and wartime priorities.
"I don't think that he's been as aggressive as he could be or should be," said Todd F. Gaziano, a senior fellow in legal studies and the director of the Center for Legal and Judicial Studies at the Heritage Foundation. "In the area of foreign policy, national defense, I think he is using his authority as aggressively as we would want him to, and appropriately. In the area of domestic policy, I think he has a conciliatory approach. He's always had, as part of his personality, a desire to reach bipartisan agreement, and maybe that's one reason he has not acted as aggressively as he should."
Gaziano--who was an attorney in the Justice Department's Office of Legal Counsel under Presidents Ronald Reagan, George H.W. Bush, and Clinton--hopes Bush's bipartisan patience is "growing thin, with the recalcitrant positions that the Democrats are taking" under the leadership of Senate Majority Leader Tom Daschle of South Dakota.
Bush's White House aides insist that the President knows how valuable his political capital is, and that he has to spend that capital wisely. To presidency scholars such as Richard E. Neustadt, who wrote a seminal 1960 book on the subject, real presidential power is the strength and standing to persuade, in order to bring about government action. It is not just the authority to effect change by edict. "From the veto to appointments, from publicity to budgeting, and so down a long list, the White House now controls the most encompassing array of vantage points in the American political system," Neustadt wrote.
Bush's first year suggests he understood how to bargain when the policies at issue were most important to him personally--tax cuts and school accountability, for instance. Before September 11, however, the President seemed to get into the most trouble when he exercised power alone. The cumulative uproar over arsenic in water, his early regulatory actions that had an anti-green tinge, and the energy policies that favored the oil and gas industries were sour notes for Bush with the public and with many in Congress. The White House is still feeling the effects of those missteps as Bush heads into his second year.
After the September 11 attacks, when the President's popularity seemed to make him unassailable, Bush found that Congress's uncritical deference was short-lived. Even among Republican lawmakers, Bush's habit of acting first and asking later has set some teeth on edge.
"Congress is a coequal branch of government," pointed out a slightly exasperated Sen. John W. Warner of Virginia, the senior Republican on the Senate Armed Services Committee, in early October. Warner gently reminded the President that Congress--by design and by law--must be in the loop. Bush had briefly instructed the departments of State, Treasury, and Defense, along with the Attorney General and the directors of the FBI and the CIA, to limit intelligence briefings to only eight lawmakers. Bush's public tantrum, prompted when a Republican Senator publicly divulged information he had heard in a classified intelligence briefing, died quietly after GOP lawmakers rushed to the White House to remind the administration about the separation of powers between branches.
Rep. Burton has warned President Bush that he'll hold "hearing after hearing" as long as the Justice Department withholds documents that Burton's committee has subpoenaed on two closed cases: an internal memo to then-Attorney General Janet Reno recommending a special counsel to look into Clinton-Gore fundraising activities, and documents related to the FBI's handling of mob informants in Boston in the 1960s, after which a man spent 30 years in prison even though the FBI had evidence that he was innocent.
"These television cameras--you see one here today--there's going to be a whole raft of them in here before it's over with," Burton promised a Justice Department witness at a December 13 hearing. The session, complete with Burton's threats to take the Bush administration to court, was followed on January 23 by a second hearing that had been anticipated in opposing editorials published in The New York Times and The Weekly Standard magazine.
"While we appreciate what the President of the United States is doing in the war and as far as the economy is concerned, we believe that the Congress of the United States has a justifiable position and right to oversee the executive branch of government," Burton declared in December.
Moderate Republican Rep. Christopher Shays of Connecticut, a member of Burton's committee, is similarly disenchanted with the administration's unwillingness to cooperate with Congress's request for information on the case involving the FBI's mob informants. In his mind, if the President wants Congress to give the Justice Department more power in the wake of September 11, it must accept congressional scrutiny. "I think they know that Congress can be excessive, but welcome to democracy," Shays said in an interview. "The best antidote to abuse is to have things in the sunlight."
To find a compromise, the congressman said he wants to have a heart-to-heart talk with Attorney General John D. Ashcroft. "I expect I will have that opportunity, but if I don't, then I simply am not going to vote for the administration to be allowed to do things that I would like them to be able to do," Shays said.
Governing by edict is great for maintaining control, but it breeds secrecy and eliminates the kind of co-ownership of policies that can come in handy when criticism inevitably arises. After Richard Nixon's Watergate crisis and Reagan's Iran-Contra problems in the National Security Council, Congress and the public have been a bit skittish about centralized White House power. Now, after Clinton's messy web of lies and secrets, Bush's insistence on keeping all kinds of information confidential begins to raise suspicions.
"If they don't want to disclose, that tells me they have something to hide," Shays said when asked about the GAO's threat to sue the White House for information about the Cheney task force's meetings with outside interests.
Suspicion is "understandable," said presidency scholar Charles O. Jones, professor emeritus at the University of Wisconsin (Madison). Bush has not persuasively explained the administration's "better-government" desires to Congress and the public, so invoking executive privilege conjures up an unhappy slide show of past abuses. "My observation with the Bush administration is that in a number of cases where they wanted to make larger change, they have failed to do the educating part," Jones said. He cited the abandonment of the Kyoto Protocol, support for a missile defense shield, and backtracking on environmental standards.
Seeking A Bigger Change
Jones is right about Bush's desire to bring about larger change, which means getting Congress to pull back from the investigative climate that existed during the Clinton years, when Clinton invoked executive privilege and in the process invited court decisions that weakened the presidency. The White House said that Bush has had this goal in mind from the day he took office.
"The pendulum probably shifted too far toward the Congress, in terms of probing the administration, during the Clinton years.... I think there's been a healthy rebalancing so the executive can have the authority to get the job done," said White House press secretary Ari Fleischer. "Is it because we have something to hide? No. It's because it's the best way to have a healthy discussion inside an administration. And that serves the President."
Bush's mission is applauded by lawyer C. Boyden Gray, a former White House counsel to George H.W. Bush. Gray said that executive privilege "is used best as a bargaining tool" with Congress to find a compromise. "I do know that they were concerned, the people who worked on the campaign. [Deputy White House counsel] Tim Flanigan and others worried about some of the erosion during the Clinton years. I think they had a mind-set to try to shore up some of that," said Gray, who was a member of the Bush transition team.
Lloyd N. Cutler, a former White House counsel to Presidents Clinton and Jimmy Carter, said "Bush is doing the right thing" by trying to stave off Congress's interest in White House and agency documents relating to advice offered to the President during policy deliberations. "I think Presidents don't invoke executive privilege enough," Cutler said. "We're at the stage now where aides don't write memos because they are afraid of being subpoenaed." Cutler disagrees, however, that the Clinton White House invoked privilege too often, to the detriment of the presidency. "They should have done more," he said.
Clinton invoked executive privilege in the face of congressional requests for information 14 times. President Reagan did so three times, and the senior Bush asserted privilege once, in 1991. (Between 1792 and 1981, Presidents used executive privilege as a shield against congressional inquiries 64 times, according to the Congressional Research Service.)
Bush White House officials "may be trying to establish the principle of executive privilege and may believe they are upholding this executive power," said professor Mark J. Rozell, director of congressional studies at Catholic University of America in Washington. "But they are using some very nontraditional cases to do that," he said, referring to the now-closed Justice Department cases from which Burton is seeking documents. Rozell, who is the author of a book about executive privilege, said, "Right now, the administration is almost using executive privilege as an opening bid to engage in a battle with Congress."
Rozell suggested that in attempting to hold a firm line so as to repair the damage done to presidential privilege during the Clinton years, Bush's White House may be making the same bad bet--that it will prevail and strengthen the traditions of executive authority for all time. These days, that is hard to do.
If the White House wants to gain ground with Congress, the time to do it is early in the administration, said lawyer A.B. Culvahouse, who was counsel to President Reagan. Bush's use of executive authority overall has been "quite adroit," he said. "They probably have a couple decisions to... reconsider." Those decisions, he said when asked to be specific, involved the order on military tribunals that invited immediate reworking, and the privilege exercise over documents relating to Cheney's energy task force. White House officials "are on quite sound legal ground to decline to release it," Culvahouse said of the task force information. "But the political price may be too high."
Enron Corp.'s bankruptcy and the company's reach into the Bush administration may force the President to compromise with Congress on the energy task force's records, some observers predict. "It's always important to stand on principle," Fleischer said on January 18. "People here are realists also. If principle becomes so difficult to uphold that you have to re-examine it, that's always a potential. But I don't see that."
Aware that Enron was about to become a liability for Bush, the White House on January 3 wrote to Rep. Henry A. Waxman, D-Calif., the ranking minority member of Burton's committee, to give him part of what the committee and the GAO had requested. The Vice President, and task force staff, Cheney's office wrote, met with Enron representatives six times before the release of Bush's energy policy proposals. The GAO will decide by mid-February whether there is enough bipartisan congressional support to take the White House to court to obtain the rest of the information lawmakers seek, an office spokesman said.
"This administration decided to try to set a beachhead against oversight by Congress or anyone else, and thought that if they could win this fight, they'd be shielded from scrutiny," said Phil Schiliro, minority staff director for the House Government Reform Committee. "The administration, whether it's the Justice Department or the White House, seems to operate on the premise that [it is] not accountable to anyone. And they look at that as an absolute right for them," he continued. "And it simply is not how the system works."
Outside groups also are holding Bush accountable. Public Citizen has filed suit to challenge the President's controversial executive order tightening National Archives and Records Administration controls over the public release of presidential papers. The White House has said it is happy to defend itself in court.
In addition, organized labor is challenging executive orders Bush issued last February that were intended to help erase Clinton's favorable treatment of labor. In November, the U.S. District Court for the District of Columbia struck down Bush's order that barred union-only contracts, or project labor agreements, on federally funded construction projects. The Justice Department is appealing. On January 7, the District Court also blocked Bush's executive order (which reinstated an order of his father's that had been weakened by Clinton) requiring federal contractors to post notices informing workers of their right to avoid unionization and union dues. The order relates to a 1988 Supreme Court decision, Communications Workers of America v. Beck.
"The court's decision in the project labor agreement and Beck-posting executive order cases show that this President has clearly overreached his executive authority... in issuing executive orders that are not only anti-worker and anti-union but, now we know, illegal," said Lynn Rhinehart, associate general counsel for the AFL-CIO.
Presidential leadership--Bush's leadership--will be measured not just in the significant legislation he signs, or the international conflicts he wins, or the terrorist strikes against innocent Americans his administration thwarts, or the economic rescues he helps devise. His leadership will also be measured by his recognition of weakness--when bravado sets up false expectations, when secrecy erodes trust, when bypassing Congress undermines larger goals or exposes self-serving motives.
Lawyers, it is safe to say, can give Presidents questionable political advice. When Bush's counsel was asked in December during a CNN interview whether the President believed that seeking congressional authorization for some of his unilateral anti-terrorist actions might weaken his authority, Judge Gonzales gave an answer that could charitably be termed "legalistic," or perhaps "shortsighted." "We view the source of the President's power as the Constitution and not statute," he replied.
He never mentioned the voters.
January 25, 2002